On December 28, 1994, the United Sections of the Court of Cassation issued an important judgement concerning the permanent or temporary nature of the offences identified by Articles 25 and 26 of Presidential Law Decree No. 915 of September 10, 1982 ("DPR 915/1982") regarding waste and waste disposal. Such provisions concern the creation or the management of unauthorised land-fills (Article 25, clause II) and the unauthorised storage of toxic and hazardous waste (Article 26).

The practical issue to be decided by the Court was whether the current chairman of the board of directors of a company could be held criminally liable for violating the above-mentioned provisions, although he did not manage the company when the unlawful action took place, but had simply (after taking over as chairman) maintained the pre-existing situation without attempting to modify it.

In reaching its decision the Court first determined whether the accused's behaviour was of a temporary or of a permanent nature. The problem to be solved appeared to be identical for both the above-mentioned offences.

Prior decisions of the Court of Cassation had diverged on this issue. On the one hand, the offence of creating and managing an unauthorised land-fill (Article 25) was declared to be "temporary although with permanent effects" (Court of Cassation, Section III, decision No. 2695 of February 14, 1992). Also, with reference to the storage of toxic and hazardous waste (Article 26), it was decided that the offence "is committed at the moment in which the storage occurs, thus excluding that maintaining waste on location may be considered as constituting continuation of the criminal activity" (Court of Cassation, Section III, decision No. 821 of December 1, 1982). On the other hand, decision No. 6304 of April 27, 1982 of the Court of Cassation, Section III, held that "the offence of managing an unauthorised urban or special waste land-fill, punishable by Article 25 of DPR 915/1982, is of a permanent nature", so implying that the criminal activity continues over time until it ceases to take place. Liability for the criminal activity would thus extend to those parties who did not act to solve the problem, who would become jointly liable with the previous offenders.

The different qualification of the offences affects both the beginning of the Statute of Limitations period and the identification of the officers or managers personally liable. Given the divergence of previous decisions on the matter, the United Sections of the Court of Cassation were thus held to determine whether the offences could take place through the "mere maintenance of a pre-existing situation created by others, even in the absence of any active participation in the matter and on the sole basis of the knowledge of its existence". That is to say, whether the offences in question could occur for having omitted to take, rather than having taken, a specific action.

The Court considered that the offence sanctioned by Article 25, Clause II, of DPR 915/1982 refers to two distinct types of behaviour, namely (1) the creation and (2) the management of an unauthorised land-fill. The Court then observed that the offence is to be considered of a "permanent" nature limited however to the period in which any of the above two activities continues. This reasoning led the Court to conclude that whoever takes over at a later time and finds waste that has been accumulated on the property by whoever previously managed the land-fill (such as in the case to be decided) is not to be considered as criminally liable: "the current owner has no obligation to counter-act, that is, to intervene in the removal of the waste from the property currently at his disposal".

The same reasoning was applied by the Court in identifying behaviour which constitutes a violation of Article 26 of DPR 915/1982. In particular, the Court noted that Article 26, in determining criminally sanctionable behaviour, refers to the list contained in Article 16 of DPR 915/1982. This list indicates four different types of activities by which the process of waste disposal occurs and in respect of which a regional authorisation is required (collection and transportation, temporary storage, treatment, final disposal in authorised land-fills). The Court noted that this list does not specifically include the behaviour of maintaining a pre-existing situation without modifying it. Hence, the Court concluded that said behaviour does not fall within the scope of Article 26 of DPR 915/1982. While observing that the violation of Article 26 is an offence with permanent effects, the Court pointed out that this should not be intended to mean that whoever is confronted with a pre-existing situation and does not attempt to modify it is by this mere fact punishable.

Although the accused was found not guilty, the Court noted that legal instruments to prevent environmental damage do exist. Indeed local mayors, in the presence of potentially harmful situations on private property, may order the current owner to remove any toxic and hazardous waste from such property and to clear out any land-fills even if he/she did not create the existing situation. Failure to abide by this type of order is punishable as a criminal offence.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

The legal investigation of a target company in M&A transactions, i.e. a "legal due diligence", has traditionally been performed on behalf of the potential purchaser

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